Critics say Child Online Protection Act limits free speech

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The Bush administration’s top Supreme Court lawyer says he typed the words “free porn” into an Internet search engine on his home computer and got a list of more than 6 million Web sites. That’s proof, Solicitor General Theodore Olson told the Supreme Court on Tuesday, of the need for a law protecting children from a tide of online smut.

Internet porn is “persistent and unavoidable,” Olson told the court, and government has a strong interest in shielding teenagers and younger children from it.

The problem, as the Supreme Court has observed before, is that a lot of dirty pictures are constitutionally protected free speech that adults have the right to see and buy. Children don’t have the same rights, but kids and adults alike can surf the Web.

Porn is “as easily available to children as a television remote,” Olson told the justices as he defended a 1998 law that Congress meant as a firewall to shield children.

The Child Online Protection Act has never taken effect. A federal appeals court struck down the law twice, on separate constitutional grounds, and it is now before the Supreme Court for a second time.

The law, known as COPA, was a replacement for a broader law that the Supreme Court rejected as unconstitutional in 1997. Congress passed COPA the following year. The retooled law is tailored to address the high court’s free speech concerns, Olson said.

“It seems to me this is very sweeping,” Justice Anthony M. Kennedy said at one point.

If porn sellers are flouting the existing laws about obscenity, perhaps the government should go after them more aggressively, Justice Sandra Day O’Connor suggested.

The Bush administration has brought 21 indictments in two years alleging that Web site operators and others crossed the line from acceptable smut to illegal obscenity, Olson told the court.

“With such a vast array of sites, there are so few prosecutions,” O’Connor said. “It’s just amazing.”

COPA would make it a crime for commercial Web site operators to knowingly place material that is harmful to children within their unrestricted online reach. Violators can face six months in jail and civil and criminal penalties of $50,000.

The law is meant to go after the really bad guys, Olson argued. He suggested that the American Civil Liberties Union and other opponents of the law are crying wolf.

No definition of 'harmful to minors'
It’s the government that is being unrealistic, ACLU lawyer Ann Beeson countered.

The law “criminalizes a depiction or description of nudity, or even a description of the female breast,” Beeson told the justices.

The ACLU challenged the law on behalf of online bookstores, artists and others, including operators of Web sites that offer explicit how-to sex advice or health information. Among them is Mitch Tepper, whose Web site dispenses very specific instructions to help the disabled enjoy sex. One article he has posted online is titled “Handsfree Whoopie.”

Tepper risks jail time if some prosecutor somewhere finds his material “harmful to minors,” the ACLU argued. COPA gives no absolute definition of what is “harmful to minors,” leaving that in part to “the average person, applying contemporary community standards.”

The ACLU maintains that the community standards test is meaningless when applied to the far-flung Internet, but the Supreme Court ruled two years ago that that claim is not enough, on its own, to make the law unconstitutional.

The high court is expected to issue a more definitive ruling by summer.